Majority
p. 313HEDGES against BUNGAY. Supreme Court, Second Department, Second District, General Term, February, 1875.
Headnote
Assignment eob benefit of obeditobs.—Bond.Under section 3 of the act of 1860 (L. 1860, ch. 348, p. 694), which authorizes assignments for the benefit of creditors, unless the assignee’s, bond is approved by the county judge within thirty days after the-date of the assignment, the assignee fails to take title to the assign- or’s estate (Applying the principle of Juliand ». Rathbone, 39 N. Y., 369 ).
The fact that the county judge was absent from the county during the last six of the thirty days, and that a bond was during such absence executed and taken to the county court-room for approval, does not cure the lack of approval.
The amendment of the act of 1860 (L. 1860, ch. 348, p. 694, above) by L. 1874, ch. 600, p. 834, does not affect the rule.
Charles Hedges, Henry Drisler, Jr., and Samuel Furman, on the one part, and George W. Bungay, Jr., as assignee for the benefit of Eleazer P. Bowen’s creditors,, on the other part, agreed to submit the question in difference between them, which might have been the subject of a civil action, to the court at general term, under section 372 of the code of procedure.
The assignment for the benefit of Bowen’s creditors was duly executed, acknowledged, and recorded under act of 1860 (Laws 1860, ch. 348, p. 594) and the acts amendatory thereof, on July 6, 1874.
On July 24, 1874, the said Bowen duly made and delivered to the county judge of Kings county the inventories and schedules required by said act, and the county judge upon them that he fixed the amount of the assignee’s bond at thirteen hundred dollars. Said
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inventories and schedules so indorsed were duly filed with the county clerk.
On July 30, 1874, the said county judge departed from Kings county, and was continuously absent therefrom until after August 5, 1874, which was the last of the thirty days from the recording of said judgment, within which the said act prescribes that the assignee’s bond shall be filed.
Previous to said August 5, 1874; the said assignee executed a .bond in accordance with the provisions of said act, and for the sum ordered by the county judge, and took the bond to the county court-rooms of Kings county, to be approved by the county judge, but was unable to obtain such 'approval by reason of his absence, as aforesaid.
On August 5, 1874, the assignee filed the said bond without such approval in the county clerk’s office.
On July 22, 1874, a judgment was obtained by the plaintiffs against Bowen in the marine court of the city of New York, and a transcript of the docket thereof was filed with the county clerk of Kings county July 24,1874. On this last mentioned day execution thereon issued to the sheriff of Kings county, and a levy was made on personal property in the possession of said assignee and belonging to the trust estate.
On August 12, 1874, Bowen duly executed and recorded another assignment to the same assignee of the same estate, and duly filed another bond for the same amount as the previous one, and with one of the sureties on the former, and one who was not thereon, and ■this second bond was approved.
The plaintiffs claim title under the judgment to the personal property levied on, and the defendant lays claim to the same by virtue of the first assignment aforesaid.
Chas. H. Knox, of counsel for the plaintiffs. (Mc
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Daniel, Lv/mmis, and Souther, plaintiff’s attorneys).—
The first assignment was void as against the plaintiffs, because the bond was not approved according to law. The strict letter of the statute is to be adhered to (Juliand v. Rathbone, 39 N. Y., 369 ). The statute is mandatory, and not directory merely (Hardmann v. Bowen, 39 N. Y., 196 ; Cook v. Kelley, 12 Abb. Pr., 35 ; affirmed in 14 Id., 466; People v. Supervisors of N. Y., 11 Id., 114). It can not be assumed that the county judge would have approved the former bond, since it had a ■different surety from the one which he did approve.
Henry Arden, for the defendant.
The provisions of the statute of 1860 before the case of Juliand v. Rathbone ( 39 N. Y., 369 ) . were held to be directory, and not mandatory (Hardmann v. Bowen, 39 N. Y., 199 ; Van Vleet v. Slauson, 45 Barb., 317 ; Evans v. Chapin, 20 How. Pr., 289 ; Barbour v. Everson, 16 Abb Pr., 366 ; Hardcastle v. Fisher, 24 Missouri, 70; Dallam v. Titler, 6 Watts & Serg., 323 ). The amendment of the act of 1860 by L. 1874, ch. 600, p. 824, changed the law as laid down in Juliand v. Rathbone ( 39 N. Y., 369 ), and reinstated the principle adhered to in the earlier cases above, and under the law so amended the assignment was made.
By the Court.[1]
This is a controversy submitted without action under section 372 of the code.
The plaintiffs had judgment, and caused levy to be made on certain property of Bowen, then judgment debtor ; before this levy, Bowen had made a general assignment for the benefit of creditors to the defendant
* Present, Barnabd, P. J., Tapper and Taecott, JJ. (Donohue, J., sat at the argument, but was not present when the opinion was handed down.
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under the act of 1860 (L. 1860, chap. 348, p. 594), but the bond of the assignee required by section 3 of that act to be approved by the county judge, and filed within thirty days, &c., had not been so approved or filed ; the reason given is that the bond was ready, but the judge was absent from the county ; the bond was filed after the thirty days without such approval. The case of Juliand v. Rathbone ( 39 N. Y., 369 ) governs the question here presented, and controls the case. The assignee did not take the title to the assignor’s estate until the bond was approved and filed, because of the peculiar language of section 3 of the act, which says that such security shall be given “.before he [the assignee} shall have power or authority to sell, dispose of, or convert to the purposes of the trust, any of the assigned, ■property.” And the amendment of this act by chap. 600, Laws of 1874 (p. 834) does not affect this provision. The plaintiffs by this levy acquired a lien which was not defeated by the existing assignment, and they should have judgment on the submitted case, with costs.